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SUPREME COURT OF ARKANSAS
No. CR-13-122
TIMOTHY ALLEN WELLS Opinion Delivered October 10, 2013
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT,
[NO. CR-2010-468-1]
STATE OF ARKANSAS HONORABLE JOHN HOMER
APPELLEE WRIGHT, JUDGE
AFFIRMED.
JIM HANNAH, Chief Justice
Appellant, Timothy Allen Wells, was convicted of capital murder in furtherance of
aggravated robbery and was sentenced to a term of life imprisonment. The conviction arose
as a result of the shooting death of Madhuben Patel, the owner of a motel in Hot Springs.
On appeal, Wells contends that (1) there was insufficient evidence that Patel’s murder was
committed during the course and furtherance of an aggravated robbery, and (2) the circuit
court erred when it refused to allow the jury to determine the accomplice status of Jason
Smith. Because this is a criminal appeal in which a sentence of life imprisonment has been
imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We
affirm the circuit court.
On February 13, 2010, Wells and Smith stopped by Gene’s Liquor Store in Malvern,
where they attempted to cash a forged check in the amount of $2700, using Smith’s name
and identification. Dwayne Wright, the night manager at the liquor store, testified that he
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had known Wells for many years and recognized him when he came into the store. Wright
stated that he refused to cash the check because “[t]he check had been . . . scribbled over
whoever’s name it was, and it was just that amount of check on a weekend from another
town.” According to Wright, when Wells left the liquor store, he was driving a Pontiac G-6.
After Wells failed to obtain money at the liquor store, he told Smith that he could get money
in Hot Springs. With Smith as his passenger, Wells drove to Hot Springs and stopped in an
alley by the Lynwood Motel. Armed with a gun, Wells then entered the motel and shot Patel
inside the motel’s office. Terrell Alan Kuykendall and Steven Hasley were at the Shell
Superstop across from the motel at the time of the murder. After hearing a loud noise and
a woman’s scream, Kuykendall and Hasley saw a man leaving the motel. They followed the
man—who was driving a Pontiac G-6—in an attempt to obtain his license-plate number, but
they were unsuccessful.
Wells confessed to investigators that he had murdered Patel at the Lynwood Motel.
In his confession, which was read to the jury and admitted into evidence, Wells stated,
Man, I lost my mind the other day in Hot Springs. I blanked out. I’m bipolar and
sometimes I flip out and go in a rage. I remember going in that building and a man
and lady started screaming at me. My bipolar acted up and I just shot. Anybody could
have been hurt that day in Hot Springs, I was ready to go in a rampage. Jason said that
he couldn’t believe the way I was acting. I remember going to the liquor store to cash
the check. I was OK there. I remember going to Hot Springs and parking the car. I
remember getting out and running into the little building. Jason was yelling at me and
I told him to shut the fuck up and I just kept going. In the store, these Arabian or
Indian people were yelling at me and I just shot. They were inside the building. That
day anyone could have got hurt. I was ready to kill somebody or kill myself. I didn’t
know the lady in Hot Springs had died. I threw the gun out the passenger’s side
window between Malvern and Hot Springs. It was between the Reynolds plant and
before the Rainbow Mart. I’m glad they stopped me; I need some help.
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Wells’s friend, David Hughes, testified that, on the night of the murder, Wells
admitted to him that he had shot somebody. Wells drove to Hughes’s residence shortly after
the murder. According to Hughes, Wells was driving a Pontiac G-6 that night.
Although Wells confessed to killing Patel, he contends that there was insufficient
evidence that he had committed the underlying felony offense of aggravated robbery. The
test for determining the sufficiency of the evidence is whether the verdict is supported by
substantial evidence. See, e.g., Huff v. State, 2012 Ark. 388, ___ S.W.3d ___. Substantial
evidence is evidence that is forceful enough to compel a conclusion one way or the other
beyond suspicion or conjecture. E.g., Stevenson v. State, 2013 Ark. 100, ___ S.W.3d ___. On
review, only evidence that supports the verdict is considered, and the evidence is viewed in
the light most favorable to the verdict. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction.
E.g., Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. To be substantial, the evidence must
exclude every other reasonable hypothesis than that of guilt of the accused. Id. The question
of whether circumstantial evidence excludes every other reasonable hypothesis consistent
with innocence is for the jury to decide. Id.
Under the felony-murder statute, a defendant need only have the requisite intent to
commit the underlying felony, here aggravated robbery, and not the intent to commit
murder. See, e.g., Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Therefore, the
elements required to sustain the conviction in this case are that Wells committed aggravated
robbery, and, in the course of or in immediate flight therefrom, he caused the death of
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another person under circumstances manifesting extreme indifference to the value of human
life. See Ark. Code Ann. § 5-10-101 (Supp. 2009). A person commits aggravated robbery if
he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102,1 and
the person (1) is armed with a deadly weapon, (2) represents by word or conduct that he or
she is armed with a deadly weapon, or (3) inflicts or attempts to inflict death or serious
physical injury upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2006).
Wells maintains that there is insufficient evidence that Patel’s murder was committed
during the course and furtherance of an aggravated robbery because proof that Wells was
attempting to rob the motel was based on the inconsistent testimony of Smith. Smith testified
at trial that, when Wells told him that he could get money in Hot Springs, he first thought
Wells might have some family members at the motel who would give him money, but he
later concluded that Wells intended to rob the motel. Smith testified that he remembered
telling police that he thought Wells was going to rob the motel and that he tried to talk him
out of it. Then, Smith testified that Wells “didn’t tell me he was gonna rob it,” and later,
during cross-examination, Smith testified that he was not sure if Wells had stated that “he
was going to rob the place.” During redirect examination, Smith stated that, when he
thought Wells was going to rob the motel, he tried to talk Wells out of it, but Wells told him
to “shut the fuck up.”
1
A person commits robbery if, with the purpose of committing a felony or
misdemeanor theft or resisting apprehension immediately after committing a felony or
misdemeanor theft, the person employs or threatens to immediately employ physical force
upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2006).
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The State contends that it is of no moment whether Wells actually uttered the word
“rob” when he told Smith he could get some money in Hot Springs. Further, the State
points out that there was no evidence demonstrating that Wells knew Patel or that she was
willing to give Wells any money. Finally, the State asserts that the evidence shows that Wells
took a gun with him into Patel’s place of business. The State contends that, in view of the
evidence adduced at trial, it is beyond speculation and conjecture that Wells entered the
Lynwood Motel with the intention of using deadly force to accomplish his stated purpose
of obtaining money and that he shot and killed Patel in the course and furtherance of an
aggravated robbery.
We agree, and we hold that there was substantial evidence to support the jury’s
verdict. Moreover, whatever contradictions, conflicts, and inconsistencies there were in
Smith’s testimony were for the jury to resolve, and it could credit those parts of his testimony
they believed to be true and disregard those they believed to be false. E.g., Abdullah v. State,
301 Ark. 235, 783 S.W.2d 58 (1990); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889
(1974).
Wells next contends that the circuit court erred when it refused to instruct the jury
that it could find that Smith was an accomplice so that Smith’s testimony would require
corroboration. The circuit court declined to instruct the jury with the disputed-accomplice
liability instruction, AMI Crim. 2d 403, concluding that there was insufficient evidence to
support the instruction. On appeal, Wells maintains that there were facts from which a jury
could have found that Smith was an accomplice. Specifically, Wells points to the following
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evidence: (1) Smith agreed to help Wells cash a stolen check and thus demonstrated his
willingness to commit a crime, (2) Smith remained in the car after he became aware that
Wells was going to rob the motel, (3) Smith aided Wells during his flight from the crime
scene, and (4) Smith did not go to the police. The State contends that the circuit court did
not abuse its discretion in refusing to give the requested instruction because there is no
evidence that Smith took part in planning the robbery, or that he otherwise encouraged or
aided in its commission.
The appellant bears the burden of proving that a witness is an accomplice whose
testimony must be corroborated. E.g., Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. A
defendant must either have the circuit court declare a witness to be an accomplice as a matter
of law or have it submit the issue to the jury for determination. Id. A witness’s status as an
accomplice is a mixed question of law and fact. Id. When the facts show conclusively that
the witness is an accomplice, the issue may be decided as a matter of law. Id. When the
accomplice status instead presents issues of fact, the question is submitted to the jury. Id.
A party is entitled to an instruction if there is sufficient evidence to raise a question
of fact or if there is any supporting evidence for the instruction. E.g., Hickman v. State, 372
Ark. 438, 277 S.W.3d 217 (2008). There is no error in refusing to give an instruction when
there is no basis in evidence to support the giving of the instruction. Id. A circuit court’s
ruling on whether to submit a jury instruction will not be reversed absent an abuse of
discretion. E.g., Taylor, supra.
In this case, Wells sought to have the jury instructed according to AMI Crim. 2d 403:
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A person cannot be convicted of a felony upon the uncorroborated testimony of an
accomplice.
[An accomplice is one (who directly participates in the commission of an offense or)
who, with the purpose of promoting or facilitating the commission of an offense:
(Solicits, advises, encourages or coerces another person to commit it;) (or)
(Aids, agrees to aid, or attempts to aid another person in planning or committing it;)
(or)
(Having a legal duty to prevent the commission of the offense, fails to make a proper
effort to do so.) ]
It is contended that the witness[es] __________ (name(s)) [was] [were] [an]
accomplice(s). If you find that [he was] [they were], then __________ (defendant(s))
cannot be convicted of __________ (felony(s) being submitted) upon testimony of
[that] [those] witness[es], unless that testimony is corroborated by other evidence
tending to connect __________ (defendant(s)) with the commission of the offense(s).
Evidence is not sufficient to corroborate the testimony of an accomplice if it merely
shows that the offense(s) [was] [were] committed and the circumstances of the
commission. [The testimony of one accomplice is not alone sufficient to corroborate
the testimony of another accomplice.] The sufficiency of the corroborating evidence
is for you to determine.
[You may, however, convict (the)(a) defendant of __________ ( misdemeanor ) upon
the uncorroborated testimony of an accomplice, because that offense is only a
misdemeanor.]
AMI Crim. 2d 403.
Having reviewed the record, we hold that even if there were any evidence to support
the giving of the instruction, Wells has not demonstrated that he was prejudiced by the
circuit court’s failure to give the instruction because Smith’s testimony was sufficiently
corroborated by other evidence. See Hickman, supra. Corroborating evidence need not
establish each element of an offense or corroborate every detail of the accomplice testimony.
E.g., Taylor, supra. It must be evidence of a substantive nature since it must be directed
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toward proving the connection of the accused with a crime and not toward corroborating
the accomplice testimony. Id. The corroborating evidence need not be sufficient standing
alone to sustain the conviction, but it must, independent from that of the accomplice, tend
to connect to a substantial degree the accused with the commission of the crime. Id. The test
is whether, if the testimony of the accomplice were completely eliminated from the case, the
other evidence would independently establish the crime and tend to connect the accused
with its commission. Id.
Here, Wells confessed to investigators that he had killed Patel at the Lynwood Motel.
Wells’s friend, David Hughes, testified that, on the night of the murder, Wells admitted to
him that he had shot somebody. The testimony of Dwayne Wright, the night manager at the
liquor store, established that, on the night of the murder, Wells sought a large sum of money
but was unable to obtain the money when Wright refused to cash a forged check. Wright
testified that when Wells left the liquor store he was driving a Pontiac G-6, which was the
same car chased by Kuykendall and Hasley immediately following Patel’s murder and the
same car that was driven to Hughes’s residence after the crimes had been committed.
Therefore, if Smith’s testimony had been eliminated from the case, Wells’s confession and
the evidence surrounding the commission of the murder would have independently
established that Wells killed Patel during the course of an aggravated robbery. Accordingly,
even if the circuit court’s failure to instruct the jury on disputed-accomplice liability was
error, it was harmless, and this court does not reverse for harmless error. See Hickman, supra
(noting that we will not presume prejudice when error is alleged and that an appellant must
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show prejudice because we do not reverse for harmless error).
In compliance with Arkansas Supreme Court Rule 4-3(i) (2013), the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to Wells, and no prejudicial error has been found.
Affirmed.
BAKER and HART, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. Under our standard of review, we
review all the evidence, even that improperly admitted and based on that standard, I agree that
there is substantial evidence to support the jury’s verdict. However, I believe that this case
should be reversed because the circuit court abused its discretion in refusing to submit to the
jury the accomplice-testimony instruction, AMI Crim. 2d 403. The majority’s use of dicta
from Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008), to forge a new procedural
template for harmless-error analysis without first determining whether the trial court erred in
finding that there was no evidence of accomplice liability is contrary to law and compromises
an accused person’s right to a fair trial. In Hickman, we upheld a trial court’s finding that there
was no evidence to support giving the accomplice-testimony instruction. Here, the trial
court’s erroneously concluded that there was no evidence to support giving the instruction.
That error should not be upheld.
A party is entitled to a jury instruction if there is any supporting evidence for the
instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003) (citing Henderson v. State,
349 Ark. 701, 80 S.W.3d 374 (2002)). In pertinent part, to be defined as an accomplice to
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the commission of a crime under our criminal code, that person must, with the purpose of
promoting or facilitating that offense, aid, agrees to aid, or attempts to aid the other person
in planning or committing it. Ark. Code Ann. § 5-2-403 (Repl. 2006). Relevant factors in
determining the connection of an accomplice with the crime include the presence of the
witness in the proximity of a crime, opportunity, and association with a person involved in
a crime in a manner suggestive of joint participation. Parker v. State, 355 Ark. 639, 144
S.W.3d 270 (2004).
Here, there was evidence that Jason Smith helped Wells in his flight from the crime
by pushing the getaway car after it got stuck. This evidence alone justifies giving the AMI
Crim. 2d 403 instruction. See Jackson v. State, 193 Ark. 776, 102 S.W.2d 546 (1937)
(evidence showing a witness was present, had knowledge of the crime that had been
committed, and had protected the perpetrator was sufficient to require giving the jury the
accomplice-testimony instruction). The trial court’s failure to give that instruction was error.
King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). Additionally, there was evidence that
Wells had earlier accompanied Smith when he attempted to cash a forged check in another
county. While Smith did not accompany Wells into the motel, an associate need not
participate in every aspect of the crime to be found an accomplice. See Meadows v. State, 2012
Ark. 57, 386 S.W.3d 470. Given Smith’s assistance in getting away from the scene of the
murder, his proximity to the murder, and his evening-long association with Wells in a quest
for money, a reasonable jury could find that there was joint participation. Accordingly, in my
view, the trial court abused its discretion in refusing to give the AMI Crim. 2d 403
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instruction.
Only after trial court error has been found is it permissible to proceed to harmless-error
analysis. Yet, in relying on Hickman, supra, the majority is omitting this essential first step.
This omission is significant, because the majority goes on to review evidence that the jury was
never asked to evaluate in the context of whether it provides corroboration of accomplice
testimony and concludes that it was sufficient. Such a conclusion would be warranted if the
issue on appeal was whether there was sufficient corroboration of accomplice-witness
testimony. In that situation the jury has already passed on the question and made its
credibility calls. Accordingly, it is proper when we view the evidence in the light most
favorable to the jury’s decision. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). Here,
the jury made no such decision. Therefore the majority’s conclusion that Smith’s testimony
was sufficiently corroborated impermissibly invades the exclusive province of the jury. The
majority is making credibility calls on a cold record to support finding its own facts.
In performing harmless-error analysis, we eliminate from the analysis all of Smith’s
testimony and determine whether there is evidence that tends to connect Wells with the
commission of the offense. Ark. Code Ann. § 16-89-111(e)(1)(A) (Repl. 2005). However,
after doing so, there is no evidence to establish the underlying felony—robbery of the motel.
The majority’s recitation of the facts shows how crucial Smith’s testimony was to the State’s
case. Indeed, not even the crime-scene photos suggested that anything had been disturbed,
much less stolen. Wells’s confession only provides evidence that he committed the murder.
Accordingly, the circuit court’s error was not harmless, and this case must be remanded for
a new trial.
Baker, J., joins.
Charles D. Hancock, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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